Post-Conviction Relief is a type of petition to the Court, which is used to address issues that cannot be raised as part of an appeal. The New Jersey Court Rules permit these types of applications in regards to matters in both the Superior Court and in the Municipal Court. The time frame in which the post-conviction relief petition must be filed 'as-of-right' (meaning that you are entitled to file the application within that time period) is set by court rule at five years.

The post-conviction application is filed in the county where the conviction was rendered, and by practice, will be assigned to the original judge who presided over the case if that judge is still sitting as a judge. Generally the petition must be filed within five years after the judgment or sentence that is the subject of the petition. An exception to this five-year period is only permitted if the applicant can establish that the delay past the five-year period is the result of 'excusable neglect'.

A petition for post-conviction relief may be based upon a claim that:

· During the proceedings that resulted in his conviction, the petitioner suffered from a substantial denial of his rights, under either the United States Constitution; the Constitution of the State of New Jersey; or, the laws of the State of New Jersey.

· The Court did not have the jurisdiction to impose the judgment.

· The Court imposed a sentence in excess of, or not in accordance with, the sentence authorized by law.

This type of application is frequently filed as a means to withdraw a guilty plea that was entered into, years after the plea was made. These types of grounds usually involve a claim that the previous attorney did not represent you properly, that the factual basis for the plea was patently defective, that the sentence was excessive given the gradation of the crime you were convicted of, or that a significant collateral sentencing issue was not understood by you - and that the plea would not have been accepted by you if you had fully understood the sentencing consequences.

Many of our client's have requested we file this type of petition when they realize they are facing deportation as the result of a plea they accepted - without being advised that the plea would result in their automatic deportation. While this sentencing consequence is considered a collateral issue (rather then a direct consequence like a jail sentence or a fine) its impact can be devastating to both the client and their family. This type of collateral consequence is not limited to only the most serious types of crimes. If the federal government considers the offense a 'crime involving moral turpitude' you will be subject to potential deportation; and, this type of post-conviction petition may become one of the last opportunities you have to get this charge removed from your record as a conviction.

Even if you are successful in having the conviction reversed by the post-conviction relief petition, the charge may still need to be dealt with in court, as the petition only addresses whether the conviction should be reversed. It does not typically result in a dismissal of the charge. When considering whether to file this type of petition, you should consult with an experienced criminal defense lawyer like those at Bailey and Orozco. Please call if you have any questions or if we may be of assistance.